Can you Bring a Claim Against Someone who Lies During Litigation?

Litigation is frustrating for a host of reasons, but one of the most frequent complaints of clients is that lawyers and witnesses misrepresent the facts and there seems to be little accountability or consequence.  Part of the reason is the litigation privilege.  The litigation privilege generally precludes civil liability based on statements by a party, counsel or witness in the institution of, or during the course of, a judicial proceeding.  The reasoning behind the privilege, which dates back centuries, is to allow lawyers to zealously represent their clients without fear of being sued for defamation.  The privilege applies even if the lawyer’s statements are malicious or made in bad faith. 

While originally designed to protect lawyers, it also extends to witnesses and to the parties, and to conduct as well as statements.  As long as the statement or conduct is related to the litigation, a litigation participant (lawyer, party or witness) generally cannot be sued for what he or she says.  Attorneys can be sanctioned by the courts and face disciplinary proceedings that could affect the attorney’s livelihood.  There is also the prospect in extreme cases of prosecution for perjury.  But generally speaking, a person cannot be sued for making false statements as long as the statements occur during the litigation.  If you are interested in reading a recent decision discussing the litigation privilege, see Bassichis v. Flores, 490 Mass. 143 (2022).

- By David Mack